United States v. Singh

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BUTA SINGH, Defendant-Appellant.

Case No.: 19-CR-3623 BLM (DMS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

September 10, 2020

ORDER AFFIRMING MAGISTRATE JUDGE CONVICTION AND JUDGMENT

On October 10, 2019, Defendant-Appellant Buta Singh ("Defendant" or "Singh") filed a timely notice of appeal to the district court. (ECF No. 44.) The Court has jurisdiction over the appeal pursuant to 18 U.S.C. § 3402.

I.BACKGROUND

On July 9, 2019 at around 8:22 p.m., RVSS operator Sergio Trevino observed approximately six individuals enter the United States on a raft by crossing the All-American Canal. (Bench Trial Transcript ("Trial Transcript"), ECF No. 48, at 15:17-24.) The individuals entered the United States in a remote area, approximately two and a half miles from the nearest designated Port of Entry, the Calexico East Port of Entry. (Id. at 31-32.) Agent Trevino observed the individuals float north across the Canal, a few yards north of and parallel to the border, and alerted other Border Patrol agents to the situation by radio. (Trial Transcript at 18:1-19:16.)

After hearing Agent Trevino's radio alert, Border Patrol Agent Sergio Barron responded to the area. He followed signs of footsteps and encountered two individuals, including one later identified as Defendant, hiding in the brush and crouching under a tree. (Id. at 36:21-37:1-5.) He initially asked the individuals to come out in English and Spanish, but neither responded. (Id. at 40:1-11.) He thereafter gestured them to come out, and they did so. (Id. at 40:12-16.) Because they did not speak Spanish, Agent Barron guessed the individuals were Indian and asked "Punjabi?", to which Defendant responded by nodding. (Id. at 40:18-24.) Agent Barron thereafter walked the two individuals to a clear area, handcuffed them, and placed them alongside a third individual who was previously discovered in the area. (Trial Transcript at 41:1-7.) He brought the three handcuffed individuals to Agent Derek Fulton and left to search for any remaining individuals in the area. (Id. at 39:10-12.)

Agent Fulton removed the individuals' handcuffs and placed them in a vehicle to obtain their biographical information and determine whether to arrest them. (Id. at 56:1-12; 57:7-9; 84:1-18.) Agent Fulton asked if the individuals spoke Spanish, and one responded. (Id. at 57:1-3.) Agent Fulton asked the Spanish-speaking individual for his documents, and he provided them. (Id.) Agent Fulton requested documents in Spanish and English from Defendant, but he did not respond. (Trial Transcript at 57:1-3.) After one of the other individuals pointed to Defendant's pocket, Defendant responded "Oh. Okay," pulled out his passport, and handed it to Agent Fulton. (Id. at 57:1-6.) Agent Fulton thereafter opened the passport and copied Defendant's biographical information into a field processing form, including his name, date of birth, and citizenship information, before returning the passport to Defendant. (Id. at 58:9-20; 67:18-25.)

On July 10, 2019, Plaintiff-Appellee United States of America ("United States" or "Government") charged Defendant Singh with attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1), a misdemeanor. (ECF No. 1.) Defendant's case proceeded under the"Streamline" process, which the Department of Justice ("DOJ") uses to manage prosecution of misdemeanor charges brought under § 1325. See United States v. Chavez-Diaz, No. 18MJ20089 AJB, 2018 WL 9543024, at *1-2 (S.D. Cal. Oct. 30, 2018) (describing DOJ's "Operation Streamline" process, as implemented by the Government in this Court), rev'd on other grounds, No. 18-50391, 2020 WL 562292 (9th Cir. Feb. 5, 2020).

On the morning of Defendant's first court appearance, he was shackled and transferred from the Border Patrol Station to a parking garage next to the federal courthouse in San Diego. (Appellant's Opening Br. ("Opening Br."), ECF No. 57, at 2.) There, Defendant met his lawyer in a large room with other detainees and their lawyers, and his lawyer informed him that the Government had offered a plea agreement that would allow him to plead guilty to a Class B misdemeanor in exchange for the prosecutor's recommendation that he receive a time-served jail sentence. (Id.)

Defendant's trial was originally scheduled for September 13, 2019 (ECF No. 14.) On August 30, 2019, Government counsel emailed Defendant's counsel to inform them of their intent to introduce Defendant's passport into evidence at trial and inquired whether Defendant would like to inspect the passport. (Ex. D. to Opening Br.) After Defendant indicated he would like that opportunity, the Government informed Defense Counsel that it no longer had access to the passport because Border Patrol sent it to the Immigration and Customs Enforcement ("ICE") detention facility where Defendant was held pending trial. (Ex. E to Opening Br., at 5.) The Government indicated Defendant likely had access to the passport at the detention center, but Defense counsel responded that Defendant did not have access to it, though "the facility (who are government contractors) may be holding it[.]" (Id. at 4.) In response, the Government noted the passport was not in the custody of Border Patrol or the prosecution team. (Id. at 3.)

Before trial, Defendant filed pre-trial challenges including (1) a motion to dismiss under the Equal Protection and Due Process Clauses of the United States Constitution; (2) a second motion to dismiss arguing that § 1325 violates the nondelegation doctrine; (3) athird motion to dismiss arguing § 1325 is unconstitutional in light of Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), and (4) a motion for jury trial, on grounds that Defendant intended to apply for asylum and a conviction under § 1325 would likely render his application unsuccessful. (See Ex. F to Opening Br.) The presiding magistrate judge, the Honorable Barbara L. Major, denied the motions. (See ECF No 53.)

The trial was continued to September 30, 2019, at which time Agents Trevino, Fulton, and Barron testified to the facts set out above regarding Defendant's arrest. (See Trial Transcript, ECF No. 48, at 15-26, 33-41, 56-63.) Agent Fulton testified about requesting documents from Defendant and the other detainees. (See id. at 56-63.) In addition to that testimony, the Government introduced three exhibits to prove Defendant's alienage. First, it moved to admit a photocopy of the document found on Defendant's person at the time of his arrest (the passport) under Federal Rule of Evidence 1003 as Government Trial Exhibit 5. (Id. at 7, 68-69.) Defense counsel objected on grounds she was not provided the opportunity to review the original passport for authenticity and requested the court to exclude the photocopy. (Id. at 8-9.) The Government responded that it did not seek to admit the document as a passport, but as a document found on Defendant at the time of arrest that evidenced he was not a United States citizen. (Id. at 71-72.) The magistrate judge admitted page 3 of the document, but excluded the rest of the document because the Agent "was unable to identify anything other than Page 3." (Id. at 76, 83.) Page 3 contained Defendant's name ("Buta Singh"), date of birth ("10/06/89"), country of citizenship or nationality ("Indian"), and place of birth ("4 SPS Salempura, Rajasthan"). (See Ex. A. to Opening Br., at 3.)

The Government also admitted two additional exhibits to prove alienage: Defendant's visa application, which contained information consistent with Exhibit 5, and a consulate certification (Exhibits 6 and 7). The magistrate judge found the latter two exhibits "sufficient to establish alienage." (Trial Transcript at 91:17-21.) The magistrate judge credited the testimony of all government witnesses, (id. at 92:10-11), and foundDefendant guilty beyond a reasonable doubt of misdemeanor attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1). (Id. at 92:7-14.) This appeal followed.

II.DISCUSSION

"In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court of the district in which the offense was committed." 18 U.S.C. § 3402. "A defendant may appeal a magistrate judge's judgment of conviction or sentence to a district judge within 14 days of its entry." Fed. R. Crim. P. 58(g)(2)(B).

On appeal, Defendant raises five challenges to his conviction. First, Defendant argues he had the right to a jury trial given the serious consequences of a § 1325 conviction. (Opening Br. at 1, 7-9.) Second, Defendant argues the magistrate judge erred by admitting the visa application under Federal Rules of Evidence 803(8) and 803(6). (Id. at 1, 9-13.) Third, Defendant argues the magistrate judge violated the Federal Rules of Evidence, Federal Rules of Criminal Procedure, and the Fifth Amendment by admitting a partial copy of a document found on Defendant's person and considering it a passport. (Id. at 1, 13-21.) Fourth, Defendant argues that § 1325(a)(1) is unconstitutional because it violates the Nondelegation Doctrine and the Equal Protection Clause. (Id. at 1, 21-22.) Fifth, Defendant argues his prosecution in "Streamline Court" violates Equal Protection and Due Process. (Id. at 2, 22-23.) Each argument is addressed in turn.

A. Right to Jury Trial

Defendant argues the magistrate judge erred by conducting a bench trial and refusing to accommodate his request for jury trial. Although Defendant was charged with a misdemeanor, he contends the circumstances of his offense constitute a "serious offense," thus triggering his Sixth Amendment rights. (Opening Br. at 7-10.)

The Sixth Amendment guarantees certain trial rights to those accused in "all criminal prosecutions," including "the right to a speedy and public trial, by an impartial jury." U.S. CONST. amend. VI. The Supreme Court has interpreted the scope of the jury trial right asapplying to...